South Dakota Power of Attorney Laws: Durable, Medical, and Financial POA (2026)

A South Dakota power of attorney (POA) allows a person (the principal) to give a trusted individual (the agent, also called attorney-in-fact) legal authority to act on their behalf in financial, property, or health care matters. South Dakota governs financial and general powers of attorney under the South Dakota Uniform Power of Attorney Act, SDCL Chapter 59-12, which took effect July 1, 2020, after the legislature enacted Senate Bill 148. Health care decision-making authority requires a completely separate document under SDCL 59-7-2.1 et seq.

What a Power of Attorney Does in South Dakota

A power of attorney is a written legal instrument in which a principal delegates specific authority to an agent. Under SDCL Chapter 59-12, the agent may be authorized to handle banking and financial institution transactions, real property transfers, business operations, insurance, retirement plans, tax matters, government benefit programs, and a wide range of other financial and property affairs. The document defines the exact scope of authority granted.

The agent acts as a fiduciary under SDCL 59-12-13. That means the agent is legally required to act in the principal's best interest, in good faith, and within the boundaries set by the document. An agent who misuses their authority faces civil liability under SDCL 59-12-16. Under SDCL 59-12-19, a third party who wrongfully refuses to accept a South Dakota compliant POA may face a court order mandating acceptance and liability for reasonable attorney's fees and costs. That remedy is narrower than it sounds: SDCL 59-12-18(1) defines a South Dakota compliant POA as one signed by the principal, substantially in the statutory form set out in SDCL 59-12-41, and acknowledged before a notary public or other individual authorized to take acknowledgments. A POA that is validly executed under SDCL 59-12-4 but not substantially in that statutory form does not carry the refusal remedy.

A financial POA does not cover health care decisions. That requires a separate health care POA under SDCL 59-7-2.1, addressed below.

Durable Power of Attorney in South Dakota

Under SDCL 59-12-3, a South Dakota power of attorney is NOT durable by default. For a POA to survive the principal's incapacity, the document must contain express language showing that intent. The statute permits any of the following formulations:

• "This power of attorney shall not be affected by disability of the principal," or
• "This power of attorney shall become effective upon the disability of the principal," or
• Similar words clearly showing the principal intends the authority to continue notwithstanding the principal's disability.

Without such language, a power of attorney terminates automatically if the principal becomes incapacitated. Including clear durability language is essential for a POA that will be useful for long-term planning or elder care. To keep the document working through incapacity, ask a South Dakota estate planning lawyer for a free case evaluation on the durability language SDCL 59-12-3 requires (attorney advertising).

Under SDCL 59-12-8, a POA is effective immediately upon execution unless the document specifies a future date or a triggering event such as incapacity. A springing POA that takes effect only upon the principal's incapacity must specify who is authorized to make that determination. If no authorized person is named, effectiveness requires a written statement from a physician, licensed psychologist, attorney, judge, or appropriate governmental official.

How to Create a Valid South Dakota Power of Attorney

For a financial or general POA to be valid under SDCL 59-12-4, the document must satisfy two requirements:

• Signed by the principal, or by another individual in the principal's conscious presence at the principal's direction if the principal cannot physically sign.
• Acknowledged before a notary public or another individual authorized by South Dakota law to take acknowledgments.

No witnesses are required for a South Dakota financial POA. For South Dakota's simpler execution rule, a power of attorney generator can create a South Dakota power of attorney for the principal to sign in front of a notary. A statutory form power of attorney is available under SDCL 59-12-41, which sets out a standard form covering common categories of financial authority and optional specific powers.

Using that statutory form is worth more than convenience. Under SDCL 59-12-18, the good faith reliance protections that let a bank, title company, or brokerage safely accept a POA attach only to a South Dakota compliant POA, meaning one signed by the principal, substantially in the SDCL 59-12-41 form, and acknowledged before a notary. A custom attorney drafted POA is still fully valid under SDCL 59-12-4, but a third party has neither the SDCL 59-12-18 reliance safe harbor nor the SDCL 59-12-19 acceptance remedy behind it, which in practice makes refusals easier and harder to challenge.

Practical execution tips:

• The notary must be present at the actual signing.
• If another person signs on the principal's behalf, both that person and the notary should be present when the principal gives the direction.
• If a POA that contains a power to convey or execute instruments affecting real property is recorded with the register of deeds, revoking it takes more than a private revocation. Under SDCL 43-28-18, the recorded power is not revoked unless the revocation instrument is also acknowledged or proved, certified, and recorded in the same office where the power was recorded.
• Keep the original in a secure location and provide copies to the agent and any financial institutions that may be involved.

What a South Dakota Agent Can and Cannot Do

General authority categories. If the POA grants the agent authority to perform all acts the principal could perform, the agent receives general authority over the subject areas in SDCL 59-12-26 through 59-12-38. Those subjects include real property, tangible personal property, stocks and bonds, banking and financial institutions, business operations, insurance and annuities, estates and trusts, claims and litigation, personal and family maintenance, government and military benefits, retirement plans, and taxes.

Powers requiring an explicit grant. SDCL 59-12-23 lists categories of sensitive authority that are not included in any general authorization and must be expressly stated in the document. An agent cannot exercise these powers unless the POA specifically authorizes each one:

1. Creating, amending, revoking, or terminating an inter vivos trust
2. Making gifts on the principal's behalf
3. Creating or changing rights of survivorship
4. Creating, changing, or revoking beneficiary designations or transfer-on-death designations
5. Delegating the agent's own authority to another person
6. Waiving the principal's right as a beneficiary of a joint-and-survivor annuity or retirement plan
7. Exercising fiduciary powers the principal has authority to delegate
8. Accessing the content of the principal's electronic communications
9. Disclaiming property or a power of appointment

Gift limits. When gift authority is granted, SDCL 59-12-39 limits annual gifts per recipient to the federal gift tax annual exclusion under 26 U.S.C. 2503(b). If the principal's spouse consents, the limit doubles. The agent must also consider whether gifts align with the principal's known objectives, accounting for tax minimization, government benefit eligibility, and the principal's prior pattern of giving.

Non-family agents. Under SDCL 59-12-23, an agent who is not the principal's ancestor, spouse, or descendant cannot use their authority to benefit themselves or a person they are legally obligated to support, unless the POA explicitly authorizes it.

Fiduciary duties. SDCL 59-12-13 sets two tiers of duty, and the difference between them matters when reviewing a document.

Subsection (1) applies notwithstanding anything the power of attorney says, so the document cannot waive it. An agent who has accepted appointment must act in accordance with the principal's reasonable expectations to the extent the agent actually knows them and otherwise in the principal's best interest, act in good faith, act only within the scope of authority granted in the document, and, if feasible, encourage an incapacitated principal to participate in decisions and to regain capacity to manage their own affairs.

Subsection (2) applies only except as otherwise provided in the power of attorney, which means a drafter can modify or eliminate any of these. Those default duties are acting loyally for the principal's benefit, avoiding conflicts of interest that impair impartiality, acting with the care, competence, and diligence ordinarily exercised by agents in similar circumstances, keeping accurate and contemporaneous records of receipts, disbursements, and transactions, cooperating with a person authorized to make health care decisions for the principal, and attempting to preserve the principal's estate plan where that is consistent with the principal's best interest. Read the document itself before assuming any of the subsection (2) duties applies to a particular POA.

Durable Power of Attorney for Health Care in South Dakota

Health care decisions in South Dakota are governed by a separate statute: SDCL 59-7-2.1 through 59-7-2.8. This is an entirely distinct framework from the financial POA in Chapter 59-12, which explicitly excludes health care decisions from its scope (SDCL 59-12-2).

Under SDCL 59-7-2.1, a principal may designate any other person as their attorney-in-fact for health care decisions. The designated agent has authority to make any health care decision at any time the principal lacks decision-making capacity. That authority may include consenting to, rejecting, or withdrawing consent for any care, service, or procedure to maintain, diagnose, or treat the principal's physical or mental condition.

Execution requirements for the health care POA differ from those for the financial POA:

• The document must be signed by the principal, or by another individual at the principal's direction in the principal's conscious presence.
• The signature must be witnessed by two other adult individuals or acknowledged before a notary public.

Decision-making standard. Under SDCL 59-7-2.5, the agent must make decisions that align with what the principal would have chosen if capable, giving weight to the attending physician's recommendation and the principal's best interests.

Pregnancy limitation. Under SDCL 59-7-2.8, even with a health care POA in place, artificial nutrition and hydration must be provided to a pregnant woman unless the attending physician and one other physician who has examined the woman certify on the medical chart, to a reasonable degree of medical certainty, that such procedures will not support fetal development and live birth, will be physically harmful to the woman, or will prolong severe pain that cannot be alleviated by medication.

Living will. South Dakota also recognizes a separate advance directive called a Declaration (commonly called a living will) under SDCL Chapter 34-12D. A Declaration allows a competent adult to direct that life-sustaining treatment be withheld or withdrawn under terminal or permanently unconscious conditions. Under SDCL 34-12D-2, a Declaration must be signed by the declarant (or by another at the declarant's direction) and witnessed by two adults or acknowledged before a notary public. A living will and a health care POA serve different purposes and many South Dakotans use both.

Revoking or Ending a South Dakota Power of Attorney

Under SDCL 59-12-9, a financial POA terminates when any of the following occurs:

• The principal dies. A POA cannot be used after the principal's death under any circumstances. Estate matters must go through probate or other post-death legal procedures.
• The principal revokes the POA. A principal with capacity may revoke at any time. A statutory revocation form is available under SDCL 59-12-43. The form requires notarization and must be delivered to the agent and to any institution holding the document to be fully effective. The SDCL 59-12-43 revocation form does not revoke a health care POA, which must be revoked separately.
• The POA specifies a termination date or condition, such as completion of a specific transaction.
• The purpose of the POA is accomplished in the case of a special or limited POA.
• The principal becomes incapacitated, if the POA does not contain durability language.
• The agent is no longer able to serve due to death, incapacity, or resignation, and no successor agent is named.
• Divorce, annulment, legal separation, or protection order proceedings are filed between the agent and the principal. Under SDCL 59-12-9(2)(c), this automatically terminates the spouse's authority as agent unless the document expressly states otherwise.

Third parties who act in good faith under a POA without actual knowledge that it has terminated remain protected under SDCL 59-12-9. Principals revoking a POA should notify the agent and all relevant financial institutions promptly in writing.

For a national overview of how durable POA rules compare across states, see our Power of Attorney Laws hub page.

This page provides general legal information about South Dakota power of attorney laws and is not legal advice. POA documents have significant legal consequences. Consult a licensed South Dakota attorney for guidance specific to your situation.

Content reviewed and current as of 2026.

More South Dakota Laws

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• South Dakota Divorce Laws
• South Dakota Probate Laws

Frequently Asked Questions

Is a South Dakota power of attorney automatically durable?

No. Under SDCL 59-12-3, a South Dakota financial POA is not durable by default. The document must contain express language such as 'this power of attorney shall not be affected by disability of the principal' or 'shall become effective upon the disability of the principal.' Without that language, the POA terminates if the principal becomes incapacitated.

Does a South Dakota power of attorney need to be notarized?

Yes, for a financial or general POA. SDCL 59-12-4 requires the principal's signature to be acknowledged before a notary public. No witnesses are required. For a health care POA under SDCL 59-7-2.1, the principal may instead have two adult witnesses sign in lieu of a notary.

Can a South Dakota agent make gifts on the principal's behalf?

Only if the POA explicitly authorizes it. Under SDCL 59-12-23, the power to make gifts is a hot power requiring a specific grant in the document. When authorized, gifts are generally limited to the federal annual gift tax exclusion per recipient under SDCL 59-12-39.

Does a South Dakota financial POA cover health care decisions?

No. SDCL 59-12-2 explicitly excludes health care decisions from Chapter 59-12. A separate Durable Power of Attorney for Health Care must be executed under SDCL 59-7-2.1, with different execution requirements including two witnesses or a notary.

How do I revoke a South Dakota power of attorney?

A principal with capacity may revoke a financial POA at any time. South Dakota provides a statutory revocation form under SDCL 59-12-43 that requires notarization. Deliver copies promptly to the agent and any institutions holding the document. The 59-12-43 form does not revoke a health care POA; that must be handled separately.

What is the difference between a South Dakota living will and a health care POA?

A health care POA under SDCL 59-7-2.1 designates an agent to make medical decisions when the principal lacks capacity. A living will (Declaration) under SDCL Chapter 34-12D is a written directive expressing the principal's own instructions about life-sustaining treatment in terminal or permanently unconscious conditions. They serve different purposes and can be used together.

Does divorce affect a South Dakota power of attorney?

Yes. Under SDCL 59-12-9, if divorce, annulment, or legal separation proceedings are filed between the principal and an agent who is their spouse, the spouse's authority as agent terminates automatically unless the document expressly provides otherwise.